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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Truck Farms Ltd (DC, 08/04/10)

OSH Tracker

Defendant:
Truck Farms Ltd
Truck Farms Ltd was fined $45,000 and ordered to pay reparations of $25,000 under sections 6 and 26 of the HSE Act after an employee was hurt while dismantling a heavy motor vehicle. He was working on a bus when it rolled off two wheel rims. Among his injuries were a broken pelvis and a split kidney which led to acute renal failure. He also had cognitive and memory problems, and spent nine weeks in residential rehabilitation unit. He had been working for the company for about 20 years after emigrating form Fiji, and had little understanding of spoken or written English. He had received limited or no training on safety. The DoL said the company had failed to identify the hazard of raised vehicles, develop safe procedures to support vehicles, ensure the processes were understood and implemented by employees (Manukau DC, April 8, 2010). 
Industry:
Transport and Storage
Sub-Industry:
Services to Transport
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Penalty Amount:
$70000.00
Reparation Amount:
$25000.00
Appeared in Safeguard issue 122

Judgment Text

DECISION OF JUDGE E O K BLAIKIE 
Judge E O K Blaikie
Introduction 
[1]
The defendant has pleaded guilty to two charges, the first under s 6 and s 50(1)(a) of the Health and Safety in Employment Act 1992. The second charge is pursuant to s 26(1) and s 50(1)(b) of the Health and Safety in Employment Act 1992 (the Act). The defendants have pleaded guilty to both charges. 
[2]
The informations were laid on 26 August 2009 and pleas of guilty were notified pursuant to a consent memorandum, dated 12 August 2009. 
[3]
Counsel for the defendant raised a jurisdiction issue and there were two interlocutory hearings when adjournments were granted. The jurisdiction argument was scheduled to be dealt with on 17 March 2010, for a half-day, but this issue was vacated when counsel indicated, by way of memorandum dated 10 March 2010, that the jurisdiction issue had been resolved and the 17 March fixture time would be utilised for sentencing purposes. 
[4]
The Court has received succinct and helpful written submissions from both counsel. I record my appreciation to them, having particular regard to the manner in which the sentencing process has taken place. I indicated in open Court to counsel and the parties the views I had reached regarding quantum of financial penalty and reparation and indicated, at that time, that brief reasons would be provided. The limited time available to me meant this approach being adopted rather than further delays in sentencing. 
Authorities Considered 
[5]
In their helpful submissions, counsel provided an array of relevant authorities. I record the following as being significant in this case: 
a)
Department of Labour v Hanham and Philp Contractors Ltd and Others (unreported), 18 December 2008, CRI-2008-409-000002
b)
Central Cranes Ltd v Department of Labour (1997) 3 NZLR
c)
Department of Labour v Boothby Contractors Ltd and Others (unreported), DC Tauranga, CRI-2206-070-87-3353-354
d)
R v Raymond Everest Hessell (2009) NZCA 450 and 
e)
AFFCO New Zealand Ltd v Department of Labour (unreported), 17 September 2008, Wellington HC, CRI-2008-483-12 (Gendall J)
The relevant provisions of the Sentencing Act are further matters I have taken into account. The authorities cited provide guidelines as to the factors to be considered when fixing a starting point, the aggravating features and discount factors and when considering the quantum of reparation. 
The Defendant 
[6]
The defendant company, incorporated as Truck Farms Limited, owns and operates a truck and heavy vehicle parts business at 65 Ash Road, Wiri. The business trades as Vincent Truck Parts and the buildings at 65 Ash Road consist of a large storage warehouse, administration offices and a retail parts shop, which is open to the public. 
[7]
At the site, the defendant employed approximately 10 people, including the employee Mr Pal, who suffered the injury. The Managing Director of the defendant company is Mr Findlay, who, according to the summary of facts, has an active role in the management of the business and has daily contact with his employees. He has provided a sworn affidavit. 
[8]
The company has no relevant prior convictions. 
The Incident and Injury Sustained 
[9]
On 12 February 2009, the employee, Mr Pal, was seriously injured at 65 Ash Road, when he was working beneath a bus and the vehicle rolled off two horizontal wheel trims, which had been used to elevate and support the rear wheels. It appears that the bus had been elevated some days prior to the accident, when the metal truck wheel rims were placed under the front wheels of the bus. 
[10]
On the day in question, the rear of the bus had been elevated through the use of a forklift and the two wheel trims were placed under the vehicle's rear wheels. The top side of the rims were uneven and of different configurations, with no additional supporting systems or blocks used to raise the rear of the bus. 
[11]
Mr Pal was on his back, beneath the bus, undering engine bolts, having disconnected the drive shaft, when the bus suddenly rolled off the supporting rims. He was crushed and pinned under the rear of the bus and subsequently pulled clear after assistance from his work colleagues. He was then taken by ambulance to Middlemore Hospital. 
[12]
As a result of the accident, Mr Pal's injuries included fractures to both wrists, deep lacerations to the bone in both hands, a broken pelvis, a split kidney, resulting in acute renal failure, cognitive and memory problems. He spent six weeks in hospital and nine weeks in a residential rehabilitation unit. 
[13]
The evidence would indicate that Mr Pal had worked for the defendant company for about 20 years, after emigrating to New Zealand from Fiji. He has limited understanding of spoken and written English and his first language is Hindi. He received limited or no refresher or other training on safety issues and the documentation which was shown to him made no specific reference to the lifting or jacking of vehicles or blocking of them and preventing them moving. 
[14]
In the summary of facts, the informant alleges the defendant company failed to take the following practicable steps: 
a)
Identify the hazard of raised vehicles. 
b)
Develop a procedure to ensure vehicles were raised and supported in a safe way, including, for example, the use of jack stands, purpose-designed chocks and secondary supports. 
c)
Ensure this procedure was understood by employees and implemented by employees and 
d)
Ensure employees did not work inside or on top of raised vehicles. 
The maximum penalty following conviction on a charge pursuant to s 6 is $250,000. 
[15]
I now turn to the second charge pursuant to s 26(1) of the Act. That charge requires little comment in that the matter was concluded on 17 March 2010, when the company was convicted and discharged. 
Attitude of Defendant Company 
[16]
The defendant has throughout acknowledged that the injuries suffered by Mr Pal were serious and had significant affect on him and his family. The affidavit evidence of Mr Findlay records the anxiety and concern experienced by all staff and company members, Arrangements were made for visits at the hospital, rehabilitation centre and at Mr Pal's home. He received from the company a “top up” payment until 18 June 2009. 
[17]
It is apparent that there has been full co-operation between the defendant and officers of the Department of Labour. I accept that the accident has been a serious and traumatic event for Mr Pal, his two co-employees and other members of the defendant company and staff. 
Sentencing 
[18]
The sentencing process in this and other similar cases involves to some extent a balancing exercise. The Hanham and Philp decision provides clear guidelines as to the appropriate sentencing approach. As regards reparation, counsel agreed, after an appropriate concession by counsel for the informant, that any reparation in this case should not include economic loss. The issue, therefore, under the heading of reparation is the quantum to be allocated for emotional harm. Numerous authorities were relied on and I heard further submissions. I noted, in particular, an offer which had been made by the defendant to Mr Pal in 2009, in the sum of $25,000 as payment of reparation. I have given careful consideration to this and I have determined that the reparation payment for emotional harm in this case should be fixed in the sum of $25,000. 
[19]
I now turn to the assessment of quantum of fine. I accept that this is a case where a fine, representing a punitive sentence, should be imposed. I have regard to the relevant provisions of the Sentencing Act 2002, in particular those enumerated in ss 7 and 8 of the Act. 
[20]
The starting point must be established. Counsel have advanced supporting views on the issue of culpability and harm. I accept the informant's submission that the risk of working underneath an elevated heavy motor vehicle is a high risk, with an obvious hazard and requiring proper safety and security measures. As to harm, the injuries suffered were serious, requiring significant ongoing treatment. I have reached the view that this is a matter which calls for medium culpability, fixing a fine between $50,000 and $100,000 and for the sentencing purposes, I fix the starting point at $90,000. 
[21]
There are no aggravating or uplifting factors. There are clear and significant mitigating factors, including expressions of remorse, co-operation and payment of reparation. I add to that the guilty plea, which has been entered at the earliest opportunity. 
[22]
Calculations 
a) 
Starting point 
$90,000 
b) 
Discount for remorse, co-operation, reparation and other remedial action 25% 
$67,500 
c) 
Further discount for guilty plea 33% 
$45,000 
[23]
A fine is entered in the sum of $45,000 and a reparation order is made in the sum of $25,000. 

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